HON. ELIOT SPITZERAttorney General for the State Of New YorkBy: Elyse Angelico, Assistant Attorney General

Third-party defendant's
attorney:

Signature date:

August 7, 2000

City:

White Plains

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

The claimant, appearing

pro se, seeks recovery from the defendant for damages which claimant
alleges was the result of negligent supervision of inmates by the Department of
Correctional Services. Trial was held at the Sing Sing Correctional Facility
(hereinafter Sing Sing) on July 25, 2000.

At trial, the claimant testified that on February 17, 1995, he was assaulted by
several inmates while in a stairwell at Sing Sing. Claimant testified that on
that date there were approximately 80 inmates moving through the stairwell in
transit to their recreation period. Claimant was unable to identify any of the
inmates who he alleges were his assailants.

The parties stipulated that the claimant sustained injuries as a result of the
assault, specifically, that the claimant received several lacerations and, at
the climax of the assault, fell down a flight of stairs and sustained a broken
arm. It is noted that the claimant's medical records confirmed the existence of
these injuries.

There is no claim in this matter that medical care was not proper or adequate.
Rather, claimant alleges that the State of New York violated proper procedure by
failing to have a correction officer present at the exact time and place of the
assault. Claimant cannot prevail on this theory.

Despite claimant's assertion that the correction officers at Sing Sing did not
follow proper state guidelines for safety at the facility on February 17, 1995,
claimant submitted no specific rule or regulation which he asserts was violated.
Further, by claimant's own testimony, the inmates who engaged in the assault
upon claimant were unknown to him at the time and remained unknown to him as of
the date of trial.

While the State must provide inmates reasonable protection against foreseeable
risks of attack by other inmates,

(Blake v State of New York, 259 AD2d 878; Sebastiano v State of New
York, 112 AD2d 562) the State is not an insurer of the safety of inmates,
and the fact that an assault occurs does not give rise to the inference of
negligence (Sebastiano v State of New York,
supra).

In order to establish liability on behalf of the State, an inmate claimant must
allege and prove one of the following grounds:

(1) the victim was a known risk and the State failed to provide reasonable
protection (see, Sebastiano v State of New York, supra);
(2) the State had notice that the assailant was dangerous and refused to take
the proper precautions (see, Littlejohn v State of New York, 218
AD2d 833; Wilson v State of New York, 36 AD2d 559); or (3) the State had
ample notice and the latitude to mediate and failed to act (see,
Huertas v State of New York, 84 AD2d 650).

In view of claimant's own testimony that: (1) the assault occurred without
warning, and (2) it occurred at the hands of unknown assailants, it is
impossible to find that the claimant was a known risk, that the assailants were
dangerous, or that the State had notice that the attack would occur or was
likely to occur.

The case law with respect to the State's duty to protect its inmates has been
quite clearly distilled. Absent evidence that the attack was foreseeable or
that segregation of the assailant was warranted under the prison rules, the
State is not liable to an inmate for damages incurred as a result of an
unprovoked attack by a fellow inmate (

Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711).
Absent any evidence of improper supervision or a threat to claimant, an assault
upon an inmate by unknown assailants neither establishes defendant's breach of
duty nor a duty owing to claimant (see, Mochen v State of New
York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900).
We find no State negligence as unremitting supervision is not required (Colon
v State of New York, 209 AD2d 842, 844).

Based upon the evidence presented, we find and conclude that while claimant was
assaulted and sustained various injuries, he has failed to establish, by a
preponderance of the credible evidence, that the State was negligent in failing
to properly supervise the inmates. Claimant offered only his bare belief that
Department of Correctional Services regulations were violated by the officers on
duty, and such belief is insufficient to establish liability.

Therefore, based upon the foregoing, the claim is dismissed. All motions made
at trial, upon which the Court reserved decision, are now hereby denied. The
Chief Clerk is directed to enter judgment accordingly.